Archives for the 'Privacy' Category
Why the GINA “Genetic Discrimination” Law Is Bad
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At Slate, Eric Posner explains why the Genetic Information Non-Discrimination Act is a bad idea as a basic concept. The law nevertheless recently passed the Senate 95-to-0 and the House 414-to-1 because politicians’ thinking is controlled by labels, not logic or substance, and no one (especially not sanctimonious people) wants to be labeled as being in favor of “discrimination,” as Richard Ford notes.
Prior to its passage, I criticized GINA’s ban on employment discrimination in the National Law Journal for lacking a “direct threat” exception for public safety. The Economist’s blog suggested its ban on insurance discrimination could fundamentally undermine insurance markets and the availability of private health insurance in the long run.
Genetic Information Non-Discrimination Act Poised to Pass
Today, the Senate will consider (and almost certainly pass) the Genetic Information Non-Discrimination Act. Earlier, I discussed the irrational fears behind this law, and how it could undermine public safety in the future (through its lack of a “direct threat” exception, even though that exception exists under other employment laws, like the Americans with Disabilities Act), in this blog and the National Law Journal. Biotech policy expert Greg Conko also analyzed the bill and found a lack of evidence that it is needed to address any real problem.
Selective Concern for International Law
American lawyers, who are overwhelmingly liberal, cite foreign law when it is politically inconvenient, and ignore it when it isn’t. They like to cite it to argue against the death penalty, claiming that since most European countries don’t have capital punishment, the death penalty must be against “customary international law” and the weight of world opinion (even though ordinary citizens in many European countries, like the United Kingdom, typically support the death penalty).
But they ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided civil juries award punitive damages. In most of the world, it is forbidden for a civil court to award punitive damages.
Another example is abortion; while most European countries recognize the right to an abortion, they recognize that that right, like all rights, has limits, and typically require that abortions be performed prior to the end of the first trimester (unlike in the United States, where third-trimester partial-birth abortion was long de facto legal, and remains difficult to regulate as a result of court rulings).
Another example is the puzzlement many immigrants have over the multibillion dollar lawsuits against phone companies for cooperating with the government after 9-11. The belief by many liberal commentators that the government should have to obtain a warrant before monitoring communications with foreign terrorists strikes immigrants like my wife, a French citizen, as completely bonkers. So, too, does the claim that the phone companies should be subject to punitive damages, even if the government itself doesn’t have to pay a dime. (Moreover, the text of the Fourth Amendment does not purport to require warrants for every conceivable form of monitoring. It merely requires that searches not be “unreasonable,” and that when warrants actually are required — such as for searches of our homes — that the warrant be supported by a finding of “probable cause”).
Some things are supposed to be private….
Anti-biotechnology activists managed to leverage sunshine laws in Europe to get the EU government to release research information that was supposed to be confidential. Now the activists are trying to do the same thing in India, but for now the Supreme Court are debating the issue.
The research information is submitted to the government under the premise of confidentiality. The government has access to the information so it can review the safety and efficacy of new products, but it has made a promise to keep the information confidential for a time period.
The sunshine laws was never meant to give competitors access to proprietary business research, it was meant to give insight into the day to day workings of politicians and bureaucrats. Using it to break down corporate trust in the regulatory system will stymie innovation, which will cost all of us in the end.
Jimmy Knows Why We Need Guns
James Stewart that is, in the movie Shenandoah.
While considering the various angles of the DC gun ban debate, I happened to see the film (after many years of hearing what a great it is) Shenandoah; boy was I glad when those credits rolled. This touching story of a quiet Virginia farmer during the civil war and his quest to hold onto his land, his family, and the right to live his life as he saw fit was a perfect concretization of the concept of a right to bear arms. It gets to the heart of why that particular right is so important.
In the DC debate, there has been a lot of talk about the”public good” and whether or not a ban on gun ownership is better or worse for public safety, whether it lowers crime rates or simply makes it difficult for honest people to own guns. These arguments, though they are interesting points of discussion, miss I think the fundamental reason for our right to bear arms. That is, we have the right to self defense; the right to protect and defend our other rights (life, liberty, pursuit of happiness) against any unlawful aggressor–even if that aggressor happens to be the United States government.
Living, as we do, in a time when there is no living survivor of a war on our own soil, it is difficult for most of us to imagine ever having the need to physically defend ourselves against a foreign army (let alone our government). That is one reason to watch Shenandoah, beside the fact that it is a brilliantly entertaining movie.
Below are two of my favorite quotes from the movie. Nobody puts it quite like Jimmy Stewart when his character, Charlie Anderson is confronted by a Lieutenant of the confederate army (this particular scene reminds of a somewhat similar occurrence in D.C. lately) :
Charlie Anderson: Can you give me one good reason why I should let my sons march down that road like a bunch of damn fools?
Lt. Johnson: Virginia needs all her sons, Mr. Anderson.
Charlie Anderson: They don’t belong to the state they belong to ME! When they were babies I never saw the state comin’ around here with a spare tit!…Lt. Johnson: When are you going to take this war seriously, Anderson?
Charlie Anderson: Now let me tell you something, Johnson, before you get on my wrong side. My corn I take seriously, because it’s mine. And my potatoes and tomatoes and my fence I take note of because they’re mine. But this war is not mine and I don’t take note of it.
From the “So let’s regulate the private sector instead” department.
GAO FINDS FEDERAL DATA PROTECTION LAGGING
“The GAO says that despite a steady stream of embarrassing computer security breaches, many major U.S. federal agencies still are doing too little to safeguard the sensitive personal information in their possession. Only two of 24 agencies studied by the GAO in a report released last week had implemented all five security measures recommended by the Office of Management and Budget to protect personal information.”
ACLU Lawsuit Against Government Over Warrantless Wiretapping Dies
The Supreme Court has refused to revive the ACLU’s lawsuit against the government for warrantless surveillance of communications with suspected terrorists. Ironically, the ACLU’s (and trial lawyers’) lawsuits against the phone companies for merely cooperating with the government continue.
We earlier discussed the legal anomaly and double standards that allow the phone companies to be sued for permitting government surveillance even when the government itself is immune from suit, and why the phone companies should be given retroactive immunity from suit.
While I disagree with the ACLU’s lawsuits over the antiterrorist surveillance program, as I have explained in prior posts, at least they involved claims of alleged government overreaching.
All too often, the ACLU sues private parties for supposed privacy violations even when they are merely exercising their own freedom of association and private contractual prerogatives.
(In Massachusetts, by the way, state privacy law curbs the civil liberties of private parties to protect wrongdoers’ “privacy,” subjecting citizens to prosecution when they tape police abusing motorists and kidnappers phoning in ransom demands.)
The Massachusetts ACLU has sought to apply to private institutions restrictions that historically only apply to the government, arguing that private institutions should be barred by the Massachusetts Civil Rights Act (MCRA)’s ban on “coercion” from contractually limiting handbilling on their premises (which it claims is a free speech violation) and requiring drug tests for athletes (which it claimed was a privacy violation).
In its trial court brief in Bowman v. Heller, the ACLU argued that an offensive parody of a candidate during a union election that offended a female candidate constituted coercion of that candidate in violation of the MCRA by allegedly causing that candidate emotional distress. The Massachusetts Supreme Court later rejected the MCRA claim, but awarded the candidate tort damages for supposed “intentional infliction of emotional distress,” over a dissent arguing that the award of damages violated the First Amendment.
Anything but consistent, the ACLU also uses lawsuits to silence offensive speech in private workplaces, even as it sues private restaurants that voluntarily seek to exercise their own property rights by restricting offensive speech on their premises, such as swastikas sported by unwelcome patrons. And while it argues that parodies in union elections are not protected speech, and that anti-Hispanic speech in the workplace is just unprotected “verbal conduct,” it also has argued that conduct devoid of intellectual conduct, such as one Massachusetts man performing oral sex on another man on stage, is “speech” protected by the First Amendment.
“Privacy” Laws Handcuff Police Searching for Murderers
Helen Smith writes about how California privacy laws kept police from searching for potential suspects in the killing of a psychologist. Overlawyered discusses the possible role of the federal medical privacy law HIPAA in delaying the apprehension of a mental patient who killed a New York therapist.
California’s privacy laws restrict not just the government, but the freedom of private parties. Even the California state constitution’s privacy guarantees have been held by state courts to restrict private entities like employers, requiring them to turn a blind eye to undesirable employee characteristics that are relevant to hiring decisions. So private employers risk lawsuits by the ACLU and its allies for attempting to exercise their freedom of contract.
That’s a very different philosophy than the federal Constitution, whose privacy guarantees only restrict government entities. (Federal statutes like HIPAA and FERPA are another story: They do bind private institutions, resulting in billions of dollars’ worth of red tape and harm to patients’ family members and next-of-kin).
Massachusetts’s insane privacy laws protect the “privacy” of kidnappers calling in a ransom demand and police abusing motorists, criminalizing citizens’ taping of such crimes. That infringes on civil liberties and First Amendment rights.
Incentives matter for data protection, too
The FBI is getting ready to announce the granting of a $1 billion contract to create a massive biometric database, allegedly to better identify criminals and terrorists, reports CNN.com. The privacy problems this presents should be obvious.
“It’s the beginning of the surveillance society where you can be tracked anywhere, any time and all your movements, and eventually all your activities will be tracked and noted and correlated,” said Barry Steinhardt, director of the American Civil Liberties Union’s Technology and Liberty Project.
The FBI already has 55 million sets of fingerprints on file. In coming years, the bureau wants to compare palm prints, scars and tattoos, iris eye patterns, and facial shapes. The idea is to combine various pieces of biometric information to positively identify a potential suspect.
A lot will depend on how quickly technology is perfected, according to Thomas Bush, the FBI official in charge of the Clarksburg, West Virginia, facility where the FBI houses its current fingerprint database.
“Fingerprints will still be the big player,” Bush, assistant director of the FBI’s Criminal Justice Information Services Division, told CNN.
But he added, “Whatever the biometric that comes down the road, we need to be able to plug that in and play.”
The real worry here is not that this information could be collected — it exists and is bound to be compiled somewhere — but that it is being collected on such a massive scale by government, which hopes to centralize its own access to it.
Companies today collect a wide amount of consumer information, much of it surrendered willingly, in exchange for greater convenience — an example of this are supermarket discount cards, which track consumer purchases in exchange for discounts and coupons for items the customer is more likely to buy. Companies that collect such information have a very good incentive to protect such data, because mishandling it leads to angry customers who then take their business elsewhere.
But what incentive do government agencies have? Not only do they not face the competitive discipline of the market, they are also subject to the perverse incentives of most funding by government, which amounts to “use it or lose it,” based on the reasoning that if you don’t use it, you probably don’t need it. So there may be an incentive for agencies that have access to such a database to “do something” with it, and that’s what worrying. (Thanks to Tom Walls for the CNN link.)
ACLU Hypocrisy on Privacy
The ACLU insists that sex in public restroom stalls is protected by “privacy”, even though such activity creates a very uncomfortable environment for those who simply wish to go to the bathroom in peace.
Ironically, the ACLU has long argued that neither free speech nor privacy protect what employers and employees say in private workplaces, in private conversations, if others subsequently learn second-hand what was said and are offended by it. For example, in Aguilar v. Avis Rent-A-Car System (1999), a sharply divided California Supreme Court, egged on by the ACLU, voted 4-to-3 to uphold a trial court order banning a private-sector employee (who was himself married to a Hispanic) from using any epithet regarding Hispanics, even if there were no Hispanic people around.
The ACLU’s justification for this was that any such use might, hypothetically, contribute to a hostile work environment for Hispanics if they learned about such uses second-hand. (Even though it is black-letter law that an isolated instance of racist speech does not create, or revive, a hostile work environment, or constitute illegal racial harassment).
In its amicus brief, the ACLU argued that any speech that contributes to a “hostile work environment” automatically ceases to be speech and becomes simply an unprotected “verbal act.” (Three of the seven justices essentially accepted this argument; one justice rejected it but voted to uphold the speech-restricting order on other grounds. One of the three justices who accepted it later seems to have recanted it, since he wrote the concurring opinion in a later case, Lyle v. Warner Brothers (2006), which noted that some speech that creates a hostile work environment — speech used to produce adult-oriented TV sitcoms — is nevertheless speech protected by the First Amendment).
Feds to Patients: Drop Dead to Prevent “Unauthorized Experiment”
A program in Michigan that saved 1500 lives over 18 months by maintaining checklists on patient care to prevent hospital infections has been shut down by the federal government. The federal Office for Human Research Protections (OHRP) defines the concept of a medical “experiment” so broadly that keeping tabs on patient care through checklists is deemed an “experiment” that requires express permission in advance from patients and physicians. To OHRP, it is better that patients die than that they be subjected to an “experiment” and that they and their physicians fill out elaborate forms after receiving extensive disclosures.
Dr. Atul Gawande notes that ”if the government’s ruling were applied more widely, whole swaths of critical work to ensure safe and effective care would either halt or shrink: efforts by the Centers for Disease Control and Prevention to examine responses to outbreaks of infectious disease; the military’s program to track the care of wounded soldiers; the Five Million Lives campaign, by the nonprofit Institute for Healthcare Improvement, to reduce avoidable complications in 3,700 hospitals nationwide.”
Institutional Review Boards set up under OHRP regulations impede and investigate academics who use interviews to collect information needed for social science research. OHRP apparently deems such routine information gathering to be “human experimentation” that triggers cumbersome notice and consent requirements under its regulations.
Apply for a Google Policy Fellowship with CEI!
Google Policy Fellows will have the opportunity to work at public interest organizations at the forefront of debates on broadband and access policy, content regulation, copyright and trademark reform, consumer privacy, open government, and more. CEI is proud to be one of those organizations.
Applications deadline is January 1st, 2008.
For application details visit:
www.google.com/policyfellowship
Paternalism to the Nth Degree
A new bill proposed in Massachusetts would make it illegal for parents to spank their children. Much of the discussion centers on spanking and how harmful or effective it is. Toddlers don’t have the ability to reason as adults can, and they cannot comprehend why certain behavior should be avoided (often for their own safety). Spanking is a visceral tool parents can use to teach their children which actions are unacceptable.
This line of reasoning however, neglects the bigger issue at the heart of the debate: Regardless of whether or not spanking a child’s gluteus maximus is effective, the government does not have the right to interfere in this matter. Kathleen Wolf, the nurse who penned the bill, cites the fact that domestic violence laws apply to everyone in the house but children. She fails to note federal and state child abuse laws already exist across the nation. For domestic abuse, authorities can intervene only after the victim files charges or police find enough evidence to file their own charges. For child abuse, again, enough evidence must be present before the authorities can step in.
If it is child abuse, why does Massachusetts need a separate law to address spanking? The answer is, that it isn’t physical abuse. The reasoning seems to be that spanking is mentally abusive to children, therefore there wouldn’t be any evidence. Trying to regulate mental abuse is dangerous new territory for lawmakers. Ask any psychiatrist and they will probably tell you that in order to avoid mental abuse, the government would have to prohibit a good 90 percent of parental behavior (or they wouldn’t say anything to avoid losing customers).
How far can legislation like this go? There really is no limit. Will the state eventually try to regulate how hard parents can hug their children or what games they can play? Once they have a foot in the door, like nosy relatives you can’t avoid, regulators can interfere in any part of our “private” lives.
Free-market groups fight mortgage nannyism
As the joke goes, there’s good news and bad news. Which would you like to hear first?
Upon hearing no answer from the readers of Open Market, I’ll begin with the bad news. On November 15, the U.S. House of Representatives passed the “Mortgage Reform and Anti-Predatory Lending Act” as an answer to mortgage woes. This “absurdly patronizing government-knows-best bill,” as my colleague Eli Lehrer called it in a CEI press release, goes beyond the goal of improved disclosure to ban mortgages that are, in the bill’s words, “inappropriate” for borrowers.
The borrowers, however, would not be deciding what is “inappropriate.” That is left for the government to decide after the fact, and to punish lenders through penalties or legal judgments. Needless to say, not only would this limit mortgages choices, it would likely make home loans much less available.
As I wrote in National Review the day before it was voted on, this bill “is on a collision course with the principle of economic freedom, that is the aim of so many policies conservatives have pushed” such as school choice and personal retirement accounts. Yet when the bill came to the floor, more than 60 Republicans — no doubt spooked by the word subprime — voted “aye.”
Now for the good news, or silver lining. 127 members of the House — all GOP — stood their ground and voted against the bill. That’s way better than in 2002, when only three voted against the draconian Sarbanes-Oxley Act stampeded through Congress after the Enron scandal. (The three were Rep. Ron Paul,R-Texas; Rep. Jeff Flake, R-Ariz., and then-Rep. Mac Collins, R-Ga.). The 127 were mostly members of the conservative Republican Study Committee (RSC), often the free-market conscience of the Congress. RSC leader Jeb Hensarling, R-Texas, made the case to the Capitol Hill newspaper The Politico that the bill would “outlaw the American dream for many struggling families” and “drive investment away.”
The other good news is that in addition to CEI, many other free-market groups are standing up for consumer choice in mortgages. CEI signed a letter with 13 other groups — including Americans for Prosperity, Americans for Tax Reform, and the Council for Citizens Against Government Waste — requesting that members of Congress neither “reward financial imprudence” with a bailout nor “intervene to prohibit risk-taking that could give some families greater economic opportunity.” The National Taxpayers Union, also a signatory to this letter, now has a page explaining the facts and pitfals of regulatory “solutions” to subprime mortgage woes.
In addition Heritage Foundation land policy expert Ron Utt has a new study on the House bill’s burdens. He makes similar points to CEI on the bills’s paternalism. Utt argues the bill requirement of “appropriate” loans could be especially intrusive for borrowers. Lenders “that fail to require applicants to submit to a complete physical, a session with a marriage counselor, and an employer interview could face uncertain risks in the courts,” he writes.
Authorian Paternalists on the Prowl!
The common claim that America is the “land of the free” continues to look ever more hollow. The latest of many targets of the authoritarian paternalists is smoking at home. Localities are increasingly banning smoking in apartments or condos. Reports USA Today on two California cities:
Next Tuesday, the City Council of Belmont is scheduled to cast a final vote on an ordinance that would ban smoking in apartments and condos. The measure, which won initial approval last week, could trigger fines and evictions if neighbors complain and smokers don’t heed repeated warnings.
In Calabasas on Wednesday, the City Council discussed a proposal that would expand its anti-smoking law to bar lighting up inside existing apartments and most new condos. The council agreed to request changes to the measure that would exempt all condos and set aside a certain percentage of apartments for smokers, says city spokesman Michael Hafken. It is slated to consider the revised proposal next month.
The legislative push, which has triggered death threats against council members in both cities, is a controversial part of a mostly voluntary effort to prod landlords and condo associations to adopt smoke-free policies…
“The time has come. The evils of smoking have been known for decades,” says Barry Groveman, a Calabasas councilman who co-wrote the proposal.
Still, he knows he’s struck a nerve. “I’ve gotten threats like you wouldn’t believe,” Groveman says.
“Fresh air should be breathed by everybody,” Belmont Mayor Coralin Feierbach says. She cites a 2006 surgeon general’s report that says no level of secondhand smoke is risk-free.
In my view, smoking is stupid. I don’t allow it in my home. I wish my friends who smoked would stop. But any country that purports to be the “land of the free” should actually be free. And that most assuredly means the legal right to smoke in one’s home, whatever one’s neighbors, friends, family members, doctors, and elected officials think.
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OpenMarket.org is the staff blog of the Competitive Enterprise Institute. We believe that people improve their lives not through government regulation, but by making their own choices in a free marketplace. -
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